shall make no law
(This page was posted in February 1996, and lightly edited February 1997. The CDA was declared unconstitutional at two different levels of our court system; unfortunately, President Clinton and the U.S. Justice Department are appealing those rulings to try to enforce this ridiculous law. The Supreme Court is next.)
An open letter to president@whitehouse.gov
To: the President <president@whitehouse.gov>
Subject: the Communications Decency Act and the First Amendment
Date: February 10, 1996
From: Scott S. Lawton <scott@prefabsoftware.com>
The history of censorship is clear and unambiguous: it's wrong.
If Huck Finn can be censored (as it has been over and over), is
anything safe?
Parents can purchase inexpensive software to block unacceptable
content. The software exists today, and was developed without
government regulation or intervention. That's the solution.
Censorship is never the solution.
"Congress shall make no law ... abridging the freedom of speech."
SHALL MAKE NO LAW. What could be more clear?
As President, you swore to uphold the Constitution. You should
have vetoed the Act. Having failed that, you should admit the
error and join the fight to render it null & void.
-- SSL, citizen defender of the Constitution
http://www.prefabsoftware.com/ssl/shallmakenolaw.html
When I first put up the PreFab website, I said (in Other Cool Places):
"I try to avoid controversy since this site is devoted to business. Freedom of speech (on the Web or anywhere else) ought not to be controversial, but it is. One organization that everyone on the Net should know about is the Electronic Frontier Foundation. In the United States, we should not forget that the "supreme law of the land" (Article VI, second paragraph) is the U.S. Constitution, as amended. Have you read it lately?"
Little did I know.
In February 1996, free speech on the internet moved from being controversial to being against the law.
"On Thursday Feb 1, 1996, Congress approved legislation to dramatically restrict the First Amendment rights of Internet users. With this act of Congress, the very same materials which are legally available today in book stores and libraries would be illegal if posted on World Wide Web sites or usenet newsgroups. With the stroke of President Clinton's pen on February 8, this law has transformed the Internet overnight from the freest communications medium to the most heavily regulated medium in the United States." [This paragraph copied verbatim from the Center for Democracy and Technology. They also provide a good summary of the law.]
The law is plainly unconstitutional and the EFF and other organizations are challenging it in court. The Supreme Court is likely (though not guaranteed) to strike it down. In the meantime, how many people will go to jail -- or "just" spend outrageous legal fees to defend themselves? How much speech will be "self-censored" to avoid prosecution? How many service providers will censor authors out of fear or confusion?
The basic problem with the law is the choice of one word, "indecent". I think it's very easy for people who consider themselves to be "decent" and moral to simply not care what the law says about speech that is "indecent". It's garbage anyway, right? Not so fast. Almost everyone opposes child pornography, but what about nudity in classic statues or paintings? I frankly don't like strings of curse words, but would I outlaw all literature that contains language that some might find offensive? Including Huck Finn? Perhaps discussions of sexual activity should be carried out in private, but should we censor every text that includes them? Such as the Bible? For further discussion and links to specific examples, see Is This What They Mean by "Indecent"?.
"Indecent" is a vague word, both in everyday usage and as defined by the courts over the years. When material that some might find merely "indecent" appears in libraries and book stores, it's protected by the First Amendment. While ordinary Americans may use the words interchangeably, the law defines certain material as "obscene" and not protected by the Constitution's guarantee of free speech. (See for example an essay by Todd Lappin or information from the Voters Telecomm Watch FAQ.) Congress and the Media used child pornography as an excuse, but "obscene" material that appears on the Internet is already illegal. Existing laws apply to the Internet; there is no reason to create a new one.
It is important to note one other fact in this whole debate. "Pornography" on the Internet is not nearly as widespread as the media has indicated. The original hype (including on the cover of Time Magazine) came from statistics that supposedly measured porn on the Internet but in fact measured it on private "Adult" Bulletin Board Systems (BBSs) that are not connected to the internet.
Eric Kidd posted a brief summary of the flawed Rimm Study, with links to key sites. I strongly recommend spending some time following links and learning the story. First, it shows how information that is just plain wrong can have enormous effects on public policy. Second, it demonstrates how the traditional print media can spread a story without checking the facts. Finally, exploring the story via the Web is a clear demonstration of why the Web is so valuable. Where else could you go behind the scenes? Where else could you get point & counterpoint, unfiltered, with no time limits? The information is at your fingertips, and available when you want it not when a broadcaster schedules it. You don't have to accept any interpretation or summary (including mine), you can review facts and commentary, make your own decisions -- and even add your voice.
NEW FLASH (from February 1996)
Make your voice be heard! Contribute an essay to 24 Hours of Democracy (was at http://www.hotwired.com/userland/24/, see the link above for a retrospective) -- no website required. If you miss the February 22 edition, watch for future opportunities.
Links
February 1997: many of these links are out of date; they are left as a bit of history.
- One of the things that led to the formal 24 Hours of Democracy project was that people were already posting and e-mailing interesting essays & editorials. I've seen some that are bold, others loud and perhaps offensive, still others that speak with the quiet voice of reason.
- For a moving essay, see Dave Winer's I Promised My Grandfather.
- Even before the law passed, Dave created a great page outlining What You Can Do.
- The proposed PICS standard offers a simple, open format for ratings, to provide "easy access to the widest possible range of content selection products, and a diversity of voluntary rating systems."
- There are software packages for limiting access to material that some may find offensive. Check out the Internet Parental Control Frequently Asked Questions (FAQ).
- For a serious bit of humor, check out http://coolheart.infi.net/exon/index.html. What is art and what is "indecent"? (Have no fear, these are art.)
- The Rimm study is covered in detail in The Ethics of Marty Rimm and CMU by Declan B. McCullagh (the former President of the CMU Student Body) and HotWired's Dissection of the Time scandal. The latter includes a breathless, day-by-day account by Brock Meeks called Why Time Failed.
- 48-hour "blackout" protest, sponsored by Voters Telecomm Watch and Center for Democracy and Technology.
- Although they've changed it back to normal, The Well joined the "blackout" protest by changing their home page to simply: "This is what censorship looks like". I've asked for an archive copy to point to.
- Many others links can be found on the Electronic Frontier Foundation's Blue Ribbon page, below.
The Blue Ribbon Campaign
for Online Free Speech
A blue ribbon is chosen as the symbol for the preservation of basic civil rights in the electronic world. EFF asks that a blue ribbon be worn or displayed to show support for the essential human right of free speech. The blue ribbon will be a way to raise awareness of these issues, and for the quiet voice of reason to be heard.
